One would think that an article written by the CEO of something called the First Amendment Center in Tennessee would have, at the very least, something of a nuanced opinion when it comes to the intersection of copyright and the First Amendment in the digital era. We are constantly hearing about the new ways people are discovering art, and we are hearing about how more and more works are being created while more money is being made by artists. If you're a supporter of "free expression," you'd think this would be something to celebrate. Similarly, when you hear of stories of how over-aggressive copyright enforcement is being used to censor speech or shut down criticism, you would think that the head of the "First Amendment Center" would express concern about the attacks on free speech and the First Amendment.
Well, apparently that's not the case. Meet Ken Paulson, aforementioned CEO of the FAC, who last made an appearance on Techdirt way back in 2009 exhorting the virtues of newspapers over internet news organizations. This time, he's back at USA Today to explain to us all what the real cost of pirating media is, and he does so with the kind of revisionist history and myopic thinking world dictators have long dreamed of harnessing. Take, for instance, the outstanding un-logic of his opening in the article.
Nashville's Craig Carothers is a singer-songwriter whose livelihood depends on concerts and CD sales. Yet sometimes, his biggest fans make that job tougher.
"I've had the experience more than once of having someone come up to me and — completely pure of heart — excitedly tell me they bought copies of my CDs when I was last in town and they enjoyed them so much they made copies for 15 or so of their friends," said Carothers.
There goes the revenue stream.
Let me see if I've got this right. Paying customers express to the artist that they enjoyed his music so much that they chose to introduce 15 of their friends to it, thereby widening the fan-base that can then go on to, oh, I don't know, buy more music, go to concerts, and all the rest...and this is a bad thing? This is the myopia of the hardline anti-sharing crowd: all they can see is that someone listened to some music without paying for it. But so what? Before the sharing occurred, these potential fans/customers ostensibly didn't know who Craig Carothers was! This isn't some devil you have to legislate against; it's your market growing. Even as a song writer, who may not get much of a cut of concert or merchandise sales, this is a can't hurt situation. New people are being introduced to the music and those new customers can then be sold to. You simply don't have to make money on every listen for you to reap the benefits of sharing.
But we aren't done.
Virtually every entertainment and media company has been buffeted by the digital revolution, but the music industry was the first to see major economic consequences and a dramatic shift in the buying habits of a new generation. Despite growth in iTunes and other digital sales, many young people continue to see "free" as the appropriate price tag on music.
Let's point out a few things here. First, the "music industry," and the entertainment industry as a whole, are doing wonderfully, particularly in a down global economy. Some specific big record labels may be floundering due to the fact that it isn't 1990 anymore, but that isn't the entire music industry. Secondly, it's an interesting method of logic to acknowledge that the most popular platform on which to purchase digital music is growing in sales and then conclude that people just want free music. I may as well use that logic to my own end, so here we go: as I've gotten older, despite the fact that I've gained some weight and worked out less, I'm even more of a man-hunk than before. Doesn't make sense, right? God I wish it did, though.
In any case, the article then wastes some more words-without-logic before admonishing the general public with these little nuggets of shame.
Noah Webster would not have been amused. Primarily known for his early and influential dictionary, Webster campaigned in the 1780s for copyright laws to protect American authors from theft of their content by printers. The printers of the 1780s were not large corporations. They were small shops that made their living largely by stealing the content of books published in Europe. Webster wanted to make sure his work would not be published without compensation.
Sept. 5 marks the 225th anniversary of the drafting of the Constitution's copyright clause. Advocates argued that ensuring authors were paid would encourage literary arts, lead to a body of truly American literature, unify the nation and demonstrate that the U.S. could be a leader in creativity. This notion of building a haven for creative people was so important that it was ratified as part of the Constitution in 1789, two years before ratification of the First Amendment, which gave us freedom of expression.
I love these two paragraphs so, so much, because of how awesomely pitiful they are. First, chiding the general public by holding up Noah Webster, (that's right, history buffs, his first name wasn't Merriam), is pointless because he lived in a time when rifles were less deadly than mosquitoes. Things may just have changed a bit since the 17-freaking-hundreds. Add to that the fact that the purpose of copyright had nothing to do with making the U.S. a leader in "creativity." This is pure revisionism. The purpose was to encourage learning. The "science" in the "promoting the progress" clause was a synonym for learning, not creativity. That's why the original Copyright Act of 1790 in the US only covered "maps, charts and books." Notice something missing? Oh, right: music. So, if we're going to go all the way back to the original intent and all, shouldn't that mean music doesn't get copyright?
Oh, and that talk about printers "stealing content of books published in Europe," and the claims that Webster wanted to make sure "that his work would not be published without compensation," it's got nothing to do with anything. As we were just discussing, American printers still figured out ways to pay foreign authors, even without copyright. Furthermore, studies have shown that it was the cheap books that American printers were able to make that helped to spread culture and literacy around the US -- which is what we were supposed to be "encouraging" with copyright law anyway.
Finally, I note that last little bit about how the Constitution's copyright clause was written two years prior to the First Amendment. Maybe someone can help me here, but I cannot fathom any reason for making this point beyond associating some kind of dominant weight to the former because it came before the latter. This is an interesting way to view Constitutional amendments, in that it's completely wrong. By this logic, I mean, yeah we repealed prohibition, but prohibition came first, so we should still have it...or something. Along those same lines, some have argued it's quite reasonable to assume that the later clause, the one promoting free expression, supersedes the earlier clause. Though, the real story is that since copyright was really designed to be narrowly focused on promoting one aspect of learning, it had little conflict with free speech. It's only since (due to exaggerated claims like the ones found in this article) copyright expanded massively, as did the tools of production, that we've created a monster in which nearly every written or recorded thing is covered by copyright that the two have obviously come into conflict.
Obvious, that is, unless you're the apparently oblivious head of the clearly misnamed "First Amendment Center."
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